United States v. Zhang ( 2022 )

22-1761
United States v. Zhang
In the
United States Court of Appeals
For the Second Circuit
August Term, 2022
No. 22-1761
UNITED STATES OF AMERICA,
Appellee,
v.
ZHE ZHANG, AKA ZACK,
Defendant-Appellant,
QING MING YU, AKA ALLEN YU, ANTONY ABREU, AKA ANTHONY,
YOU YOU, AKA EDDIE
Defendants.
On Appeal from the United States District Court for the Eastern
District of New York.
ARGUED: SEPTEMBER 21, 2022
DECIDED: DECEMBER 6, 2022
Before: RAGGI, WESLEY, and NARDINI, Circuit Judges.
Defendant-Appellant Zhe Zhang, indicted for participating in
a successful murder-for-hire scheme, was ordered detained pending
trial. Zhang appeals the district court’s decision not to reopen his
detention hearing under 18 U.S.C. § 3142(f) after the U.S. Department
of Justice confirmed that it would not seek the death penalty against
him. We conclude that the district court did not abuse its discretion
in declining to revisit its detention ruling. In its initial detention
determination, the district court had assumed that the death penalty
would not be sought, and so the government’s later confirmation of
that point did not materially change the detention calculus.
Moreover, the district court’s consideration of the strength of the
evidence that Zhang committed the charged offense, as part of its
assessment of whether Zhang posed a danger to the community or a
risk of flight, was consistent with the Bail Reform Act and did not
undermine the presumption of innocence, which is a trial right. We
therefore AFFIRM the district court’s decision not to reopen Zhang’s
detention hearing and DENY Zhang’s motion for bail.
GABRIEL PARK, Assistant United States
Attorney (David C. James, Assistant United
States Attorney, on the brief), for Breon Peace,
United States Attorney for the Eastern
District of New York, Brooklyn, NY, for
Appellee.
JASON I. SER (Henry E. Mazurek, on the brief),
Meister Seelig & Fein LLP, New York, NY,
for Defendant-Appellant.
2
WILLIAM J. NARDINI, Circuit Judge:
Defendant-Appellant Zhe Zhang was indicted for participating
in a successful murder-for-hire scheme, see 18 U.S.C. § 1958(a), and
the government sought his detention. After a hearing, the district
court determined that Zhang should be detained because he posed a
danger to the community as well as a risk of flight, and no set of
release conditions would offset those risks. In reaching that
conclusion, the court considered a variety of factors, including the
government’s proffer of strong evidence that Zhang committed the
charged capital offense. It assumed, however, that the government
would not seek the death penalty. About a month later, the
government formally confirmed that it would not do so, and Zhang
moved unsuccessfully to reopen his detention hearing.
On appeal, Zhang raises two challenges to the district court’s
August 3, 2022, denial of his motion to reopen, but neither is
persuasive.
3
First, he contends that the court was obliged to reopen his
detention hearing under 18 U.S.C. § 3142(f) because the government’s
formal decision not to seek the death penalty was information that
was both new and material to the question of whether he should be
released or detained. But the district court made clear that the
availability of the death penalty had not factored into its original
detention decision. Thus, the government’s confirmation of the
court’s assumption would not have materially altered the court’s
determination that detention was necessary, and so the district court
did not abuse its discretion under § 3142(f) in denying the motion to
reopen.
Second, Zhang argues that the district court relied too much on
the strength of the evidence that he committed the charged offense in
deciding not to exercise its inherent powers to reopen the detention
hearing, and that its reliance contravened the presumption of
innocence. But a district court has broad discretion to determine how
4
much weight to assign the factors listed in § 3142(g) based on the
circumstances of a particular case. The presumption of innocence is
a trial right, and a district court does not violate that presumption by
considering the strength or weakness of the evidence to determine
whether pretrial detention is appropriate.
We therefore AFFIRM the district court’s decision not to reopen
Zhang’s detention hearing and DENY Zhang’s motion for bail.
I. Background
On May 4, 2022, a federal grand jury sitting in the Eastern
District of New York returned an indictment charging Zhang and
three co-defendants with murder-for-hire and conspiracy to commit
murder-for-hire for the 2019 killing of Xin Gu in Flushing, Queens.
The government alleges that Gu’s former employer, Qing Ming Yu,
hired his nephew, You You, to kill Gu when he started a rival real
estate company in late 2018. You then allegedly hired Zhe Zhang and
Anthony Abreu to help him carry out the murder.
5
The government alleges that in the early hours of February 12,
2019, You, Zhang, and Abreu lay in wait outside a bar in Flushing,
where Gu was hosting a Lunar New Year celebration. When Gu left
the bar at 2:30 a.m., Abreu shot Gu multiple times and then fled the
scene in a car driven by Zhang. Several months later, Yu’s company
wired $30,000 to a company registered to Zhang.
On May 10, 2022, Zhang was arrested in the Central District of
California. On May 12, 2022, he sought pretrial release at a hearing
before a magistrate judge in that district (Jacqueline Chooljian, M.J.).
Zhang proposed a bond of $1.55 million and emphasized his U.S.-
based family, his job, and his willingness to accept electronic
monitoring. Seeking pretrial detention, the government pointed to,
among other things, the seriousness of the charges (carrying a
mandatory minimum sentence of life imprisonment upon
conviction), Zhang’s frequent trips overseas, and the disclosed
existence of a cooperating witness. The magistrate judge granted
6
pretrial release subject to home detention and the proposed bond but,
recognizing that the U.S. Attorney’s Office for the Eastern District of
New York was planning to appeal and that Zhang would not be able
to finalize the bond paperwork for several days, she stayed the release
order until May 18, 2022.
On May 13, 2022, the government appealed the California
pretrial release order to the U.S. District Court for the Eastern District
of New York (Carol Bagley Amon, J.).
On May 19, 2022, the district court heard the government’s
appeal. The government and Zhang presented largely the same
arguments as they had before the magistrate judge, although the
government described its evidence against Zhang in more detail. This
evidence included cell site location records, telephone toll records, a
text message sent from Zhang to a codefendant 20 minutes after the
murder, the testimony of multiple witnesses, and financial records
showing the payment from Yu to Zhang. In addition, the government
7
claimed to have significant evidence that Zhang was heavily involved
in the illegal sale of marijuana, that he had extensive ties to China,
and that certain of the suretors put forward by Zhang for his bond
were not, in fact, close social, familial, or professional relations.
The hearing also included a brief discussion of the possibility
of capital punishment. The government could not say for certain
whether it would seek the death penalty, because the matter was still
pending with U.S. Department of Justice in Washington, D.C. But the
court noted its understanding that, as matter of policy, “this Justice
Department was not pursuing the death penalty in any case,” and
stated its belief that appointing the additional counsel required for a
death penalty case would therefore be “wasting the court’s time and
taxpayers’ money.”
Reviewing the magistrate judge’s decision de novo, the district
court ordered Zhang detained because no combination of conditions
would reasonably ensure Zhang’s appearance in the case and the
8
safety of the community. The court noted that the charged crime was
“extremely serious” and the evidence against Zhang was strong.
Additionally, Zhang had substantial ties to China and Taiwan, had
previously threatened a witness, and had access to weapons. The
court further concluded that the suretors did not alleviate the risk of
flight because they provided little “moral suasion” over Zhang given
their attenuated connections to him.
Approximately one month after the district court ordered
Zhang detained, on June 29, 2022, the government informed the court
that the Attorney General had directed the U.S. Attorney’s Office for
the Eastern District of New York not to seek the death penalty against
any of the defendants named in the indictment.
On July 22, 2022, Zhang filed a motion to reopen his detention
hearing under 18 U.S.C. § 3142(f). He argued that the government’s
decision not to seek capital punishment constituted a material change
in circumstances that justified reopening the detention decision. That
9
fact, coupled with a newly proposed $5 million bond (secured by
properties and co-signors with whom he claimed to have closer
relationships), now made pretrial release appropriate.
On July 28, 2022, the district court held a hearing on Zhang’s
motion to reopen. There, the district court reiterated that its “original
ruling did not consider the death penalty” because it had been “of the
view that there would be no death penalty authorized in this case.”
Appellant Br., Ex. G, July 28, 2022, Bail Reopening Hearing Tr. at 4;
see id. at 7 (“[T]he Court did not take [the potential death penalty] into
account at all.”). Thus, the district court indicated that it would not
reopen the hearing because the fact that the government would not
seek the death penalty was not material information unknown at the
time of the initial bail hearing. The district court informed the parties
that it would issue a written order memorializing its ruling.
On August 3, 2022, the district court issued that written ruling,
denying Zhang’s motion to reopen his detention hearing and for
10
pretrial release. The district court found that the government’s
decision not to seek the death penalty was not material information
that justified revisiting the court’s initial determination, because its
“original decision denying bail did not rely in any way on the
potential for a capital sentence.” United States v. Zhang, 22-cr-208-4,
Dkt. No. 53, 2 (E.D.N.Y. Aug. 3, 2022).
The court also declined to revisit its prior decision under its
inherent powers. Id. at 2–3. It observed that a review of the factors
outlined in 18 U.S.C. § 3142(g)—the severity of the alleged offense, the
strong weight of the evidence against Zhang, Zhang’s personal
characteristics (including his ties to other countries and past criminal
conduct), and the danger posed by Zhang’s release—indicated that
Zhang was both a flight risk and a danger to the community. Id. at 3–
8. The court noted that it would have reached this conclusion even if
it had given less weight to the evidence against Zhang. Id. at 5. The
court went on to find that the bond package and release terms
11
proposed by Zhang could not mitigate his risk of flight and danger to
the community, particularly in light of the modest incomes of those
acting as sureties, the uncertain ownership of the properties to be
pledged, and Zhang’s prior use of encrypted messaging applications
and burner cellphones. Id. 8–11.
On August 12, 2022, Zhang filed a notice of interlocutory
appeal of the district court’s August 3, 2022, Memorandum and
Order. On August 29, 2022, Zhang also filed a motion for bail before
this Court.
II. Discussion
In the usual case of a direct appeal from a district court’s denial
of pretrial release, we “apply deferential review to a district court’s
bail determination and will not reverse except for clear error.” United
States v. Mattis, 963 F.3d 285, 291 (2d Cir. 2020) (cleaned up). “The
clear error standard applies not only to the factual predicates
underlying the district court’s decision, but also to its overall
assessment, based on those predicate facts, as to the risk of flight or
12
danger presented by a defendant’s release.” Id. (cleaned up). The
district court’s “ultimate finding may be subject to plenary review if
it rests on a predicate finding which reflects a misperception of a legal
rule applicable to the particular factor involved.” United States v.
Shakur, 817 F.2d 189, 197 (2d Cir. 1987).
Here, however, we are a step removed from the usual case.
Zhang did not appeal the district court’s original detention
determination, which was conveyed orally at the May 19, 2022,
hearing. Instead, Zhang appeals only the district court’s later decision
on August 3, 2022, denying his motion to reopen the detention
hearing. That decision is reviewed for abuse of discretion. See United
States v. Gotti, 794 F.2d 773, 779 (2d Cir. 1986) (reviewing decision not
to reopen bail hearing for abuse of discretion). As in other contexts, a
“district court has abused its discretion if it has (1) based its ruling on
an erroneous view of the law, (2) made a clearly erroneous assessment
of the evidence, or (3) rendered a decision that cannot be located
13
within the range of permissible decisions.” Warren v. Pataki, 823 F.3d
125, 137 (2d Cir. 2016) (cleaned up). And so, to the extent that the
district court’s decision not to reopen was premised on factual
findings—including its ultimate assessment of danger and risk of
flight—that component of its ruling remains subject to review for
clear error.
Zhang’s August 29, 2022, motion for bail, filed directly with this
Court, does not alter our standard of review. In the normal course,
motions for detention or release must be filed in the district court in
the first instance. Cf. United States v. Hochevar, 214 F.3d 342, 342–44
(2d Cir. 2000) (holding that a motion for bail pending appeal must
first be filed before a district court). A court of appeals then sits in
review of the district court’s decision. See Fed. R. App. P. 9(a). Here,
the district court ordered Zhang’s detention on May 19, 2022, and
Zhang did not file a timely notice of appeal from that decision.
Instead, it was only after the district court denied his motion to reopen
14
that Zhang filed a notice of appeal. It is therefore only that latter
order—denying the motion to reopen—that is properly before us. Put
another way, Zhang’s direct filing of a motion for bail in this Court
cannot serve as an end-run around his decision not to appeal the
district court’s initial bail decision, and it does not expand the scope
of our review on appeal. See United States v. Watkins, 940 F.3d 152,
157–58 (2d Cir. 2019) (applying clear error standard to defendant’s
appeal of denial of bail and to motion for bail filed directly before the
Court).
A. The government’s decision not to seek the death penalty
The district court did not abuse its discretion in declining to
reopen Zhang’s detention hearing under 18 U.S.C. § 3142(f) in light of
the Attorney General’s decision not to seek the death penalty.
Under the Bail Reform Act, of which § 3142(f) is a part, a court
has discretion to reopen a bail hearing if information comes to light
that is both new and material to the detention question. Specifically,
a hearing “may be reopened” if
15
the judicial officer finds that information exists that was
not known to the movant at the time of the hearing and that
has a material bearing on the issue whether there are
conditions of release that will reasonably assure the
appearance of such person as required and the safety of
any other person and the community.
18 U.S.C. § 3142(f) (emphases added). Here, the district court
concluded that Zhang presented no “material” information to justify
reopening the bail hearing because the court had not relied on the
possibility of the death penalty in its initial holding. See Zhang, 22-cr-
208-4, Dkt. No. 53, 2 (E.D.N.Y. Aug. 3, 2022); Appellant Br., Ex. G, July
28, 2022, Bail Reopening Hearing Tr. at 5:5–8, 47:7–12.
Zhang argues that the district court erred by applying the
wrong standards for determining whether the relevant information
was “new” and “material.” The Bail Reform Act, he submits, asks
whether the new information was “known to the movant at the time
of the hearing,” 18 U.S.C. § 3142(f), not whether it was known to the
court. Further, he argues that whether the new information has a
“material bearing” on the availability of satisfactory release
16
conditions cannot be determined by looking to the district court’s
original rationale for denying release. Zhang contends that, with
these standards correctly applied, the fact that the Attorney General
had formally decided not to seek the death penalty was both new and
material information, and so the district court erred in declining to
reopen his detention hearing.
As an initial matter, we emphasize that the Bail Reform Act
states only that a hearing “may” be reopened if new and material
information is presented. 18 U.S.C. § 3142(f). The Act therefore leaves
the decision to reopen a hearing to the sound discretion of the district
court. Cf. In re Worldcom, Inc., 708 F.3d 327, 335-36 (2d Cir. 2013) (“By
saying that the district court ‘may’ grant relief, [a] rule does not
require the district court to grant the relief, even if the requirements
are met.” (cleaned up)). Accordingly, even if Zhang’s arguments
were otherwise correct, the district court could still decide, in its
discretion, not to reopen the detention hearing.
17
But Zhang’s arguments are not correct; rather, they fail on their
own terms. Although he is correct that new information under the
statute must have been “not known to the movant at the time of the
hearing,” 18 U.S.C. § 3142(f), that definition does not help his case. As
the district court made clear, it declined to reopen the detention
hearing because the Attorney General’s decision was not material, not
because it was not new. See Zhang, 22-cr-208-4, Dkt. No. 53, 2
(E.D.N.Y. Aug. 3, 2022) (“Accordingly, the government’s decision not
to pursue the death penalty does not have a material bearing on
Zhang’s detention.” (emphasis added)).
Zhang’s argument as to materiality is also unavailing. He
contends that because § 3142(f) does not explicitly link the materiality
requirement to the court’s prior detention order, new information
may be material even if the court previously assumed it to be true. To
hold otherwise, he suggests, “could incentivize courts to intentionally
exclude critical information when making bail determinations to
18
shield them from later reconsideration.” But Zhang does not explain
how a court “exclude[s] critical information” from its analysis when
it assumes that very same information to be true. And because a party
can take a timely appeal from a detention or release decision, the
district court’s analysis—including information that it found, or
merely assumed, to be true—is subject to this Court’s review, with the
district court’s factual findings and assumptions open to appellate
scrutiny. Moreover, Zhang’s policy argument presumes bad faith by
judicial officers and untethers the materiality inquiry from those facts
that the court found consequential to its earlier detention decision. A
court’s prior detention determination is a natural reference point
against which to measure the materiality of new information for the
purpose of reopening the hearing—that is, revisiting its earlier
decision. Doing so, as the district court did here, is fully consistent
with 18 U.S.C. § 3142(f).
19
Finally, Zhang disputes the district court’s statement that it did
not consider the death penalty in its initial detention decision, but that
statement is well supported by the record. During the hearing on
May 19, 2022, the district court made clear its understanding that the
government would not be pursuing the death penalty. Appellant Br.,
Ex. D, May 19, 2022, Bail Hearing Tr. at 13 (stating that it was “wasting
the Court’s time and the taxpayers’ money [to be] appointing [death
penalty] counsel who will not be necessary”). The district court
certainly did not rely on the availability of the death penalty in its
initial decision; no mention was made of capital punishment in the
district court’s oral reasoning for its decision to detain Zhang. To the
extent that the district court relied on the possible punishment to
which Zhang was exposed, it said only that a conviction would entail
a mandatory minimum of life imprisonment. Finally, the district
court explicitly stated, in its written ruling denying reopening, that it
had not factored the death penalty into its original detention decision.
20
We will not lightly disregard a district court’s characterization of its
own analysis, particularly not when, as here, the record fully supports
that characterization.
In sum, the district court did not abuse its discretion when it
declined to reopen the detention hearing in light of the Department
of Justice’s confirmation that it would not seek the death penalty.
B. The “weight of the evidence” factor
Zhang next argues that the district court, in its analysis of the
§ 3142(g) factors, relied too heavily on the strength of the evidence
that he committed the charged offense when it declined to exercise its
inherent power to revisit its detention decision. Putting significant
weight on that evidence, he claims, undermines the presumption of
innocence to which a defendant is entitled. We are unpersuaded.
Beginning with the statute, the Bail Reform Act identifies key
considerations for a detention decision. It states that a court “shall, in
determining whether there are conditions of release that will
reasonably assure the appearance of the person as required and the
21
safety of any other person and the community, take into account the
available information concerning”: (1) “the nature and circumstances
of the offense charged,” (2) “the weight of the evidence against the
person,” (3) “the history and characteristics of the person,” and
(4) “the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release.” 18 U.S.C.
§ 3142(g).
The statute provides additional detail for some of those factors.
For example, it lists certain types of crimes that warrant particular
consideration under the rubric of the “nature and circumstances of
the offense charged.” See 18 U.S.C. § 3142(g)(1) (instructing courts to
consider whether the offense is “a crime of violence, a violation of
section 1591, a Federal crime of terrorism, or involves a minor victim
or a controlled substance, firearm, explosive, or destructive device”).
The statute also provides an illustrative list of factors that relate to a
defendant’s personal history and characteristics, including “the
22
person’s character, physical and mental condition, family ties,
employment, financial resources, length of residence in the
community, community ties, past conduct, history relating to drug or
alcohol abuse, criminal history, and record concerning appearance at
court proceedings.” 18 U.S.C. § 3142(g)(3)(A). Furthermore,
subsection (g)(3)(B) tells the court to consider whether the defendant
was under court supervision when he was arrested or committed the
charged crime. See id. § 3142(g)(3)(B).
Although § 3142(g) of the Bail Reform Act lists various factors
to consider, it says nothing about the relative weight a court should
give them when deciding whether to release or detain a defendant.
See generally 18 U.S.C. § 3142(g). That silence is unsurprising, because
the weight given to each factor will inevitably vary from case to case,
and might even vary depending on whether the inquiry relates to a
defendant’s danger or to his risk of flight. What is more, certain
factors might interact with one another in a particular case in a way
23
that alters a court’s analysis of a defendant’s danger to the community
or flight risk.
The district court’s ruling on the motion to reopen
demonstrates careful consideration of § 3142(g), the “available
information,” and its relevance to Zhang’s danger to the community
if released. Regarding the first factor—the nature and circumstances
of the crime—the district court observed that the charged offense was
“extremely serious” because it involved a victim’s death for payment,
“evinc[ing] a calculated disregard for human life.” It was entirely
appropriate for the court to focus on the fact that the charged offense
involved murder, which by its nature involves violence and bespeaks
danger to others. Here, where the defendant was charged with
murder for which he collected a fee, this factor weighed substantially
in favor of a finding of future dangerousness.
The court also properly considered the second factor—the
weight of the evidence—in determining that there was “significant
24
evidence” that Zhang had in fact committed the charged murder. The
court observed that the government had proffered witness testimony,
including that of a cooperating witness, video surveillance, financial
records, cell phone records, and texts linking Zhang to the crime, all
of which formed a “strong” case against him. In making a predictive
assessment of the defendant’s future dangerousness if released into
the community, common sense and § 3142(g)(2) aligned with the
district court’s consideration of the strength of this evidence,
especially coupled with the nature of the charged offense. It stands
to reason that the more strongly the evidence indicated that the
defendant committed the murder, the more likely he poses a danger
to the community if released on bail.
The district court next considered the third factor—the history
and characteristics of the defendant—determining that this, too,
weighed in favor of detention. The court appears not to have ascribed
much weight to Zhang’s criminal history in determining his
25
dangerousness. But the district court expressed significant concern
about social media posts by Zhang threatening a witness in another
case, as well as another post in which he displayed “a veritable
arsenal of firearms in the trunk of his car.” Zhang, 22-cr-208-4, Dkt.
No. 53, 6 (E.D.N.Y. Aug. 3, 2022). These instances of past conduct
strongly indicated a history and characteristics posing a danger to the
community if released, which was highly relevant to a finding of
dangerousness.
Finally, the charged offense and Zhang’s social media posts
also supported a finding of dangerousness in light of the fourth
factor—the nature and seriousness of the danger to any person or the
community. 18 U.S.C. § 3142(g)(4). Although this factor is closely tied
to the ultimate inquiry, the district court reasonably concluded that
the charged crime and past conduct surely indicated that Zhang
presented a serious danger to the community, particularly with
regard to his potential threatening conduct towards witnesses.
26
Far from manifesting error, the court’s reasoning demonstrates
the flexible, fact-intensive nature of a detention decision. The court
called on case-specific information to assess each factor’s relevance,
and reasonably found that, individually and as a whole, the factors
pointed towards the need to detain the defendant to avoid danger to
the community.
The district court conducted a similarly probing analysis of the
§ 3142(g) factors as to Zhang’s flight risk. Regarding the nature and
circumstances of the offense charged, the district court observed that
Congress has set a mandatory minimum of life in prison for murder-
for-hire, which creates an “extraordinary” risk of flight, particularly
for a 34-year-old defendant such as Zhang. The prospect of a severe
sentence can create a strong incentive for a defendant to flee and
thereby avoid that sentence. See United States v. Sabhnani, 493 F.3d 63,
76 (2d Cir. 2007).
27
The weight of the evidence against Zhang functioned likewise.
Observing the strong evidence against Zhang, the district court noted
that “an increased probability of conviction increases his risk of
flight.” Zhang, 22-cr-208-4, Dkt. No. 53, 5. Where, as here, the
evidence against a defendant is strong, it follows that the defendant
faces an elevated risk of conviction (and of the attendant
punishment), and therefore may present an elevated risk of flight.
The district court also thoroughly considered the history and
characteristics of the defendant, concluding that they supported a
finding that he was a flight risk. The court observed that Zhang’s
close family ties with China and Taiwan provided him with an
incentive and avenue to flee the potential life sentence he faces. The
court further considered Zhang’s history of marijuana distribution,
primarily as it provided him with an alternative source of income to
flee, even if the government froze his other assets. The history and
characteristics of a defendant may affect a court’s risk-of-flight-
28
analysis by demonstrating a defendant’s incentives, ability, or
probability of flight (or lack thereof).
Having found that Zhang presented a danger to the community
and risk of flight if released, the district court considered “whether
there are conditions of release that will reasonably assure the
appearance of the person as required and the safety of any other
person and the community.” 18 U.S.C. § 3142(g). The court found
that there were not. Although the proposed bond package was $5
million, it was “backed by only $1.4 million in real property,” and the
signatures of nine sureties, “most of whom have modest incomes.”
Zhang, 22-cr-208-4, Dkt. No. 53, 8–9. This package held insufficient
“moral suasion” over Zhang, particularly considering his “substantial
incentive and ability to flee a potential life sentence.” Id. at 10. The
district court also found the other proposed conditions insufficient to
prevent flight and protect witnesses and the community. In the
context of this case, Zhang’s agreement to waive extradition,
29
proposed monitoring of his cellphone, and proposed electronic
monitoring and home detention were also insufficient to allay the
risks. See id. at 10–11 (discussing the “empty gesture” of extradition
waivers, Zhang’s past use of encrypted messages, and his ability,
upon deciding to flee, to remove any electronic monitoring).
In short, the district court engaged in precisely the sort of case-
specific approach that this Court has endorsed. See, e.g., Mattis, 963
F.3d at 295–96 (affirming district court’s grant of pretrial release,
despite “strong” evidence of guilt, on account of the defendants’
personal characteristics and a bond condition determined to
sufficiently deter flight); United States v. English, 629 F.3d 311, 317, 322
(2d Cir. 2011) (affirming the district court’s denial of pretrial release
where the evidence against the defendant was “incredibly strong”
and evidence “is one of the most important factors to consider”).
Zhang counters that putting significant weight on the evidence
that he committed the charged offense undercuts the presumption of
30
innocence owed to criminal defendants. He is mistaken. The
presumption of innocence “is a doctrine that allocates the burden of
proof in criminal trials; . . . it has no application to a determination of
the rights of a pretrial detainee.” Bell v. Wolfish, 441 U.S. 520, 533
(1979). That is because pretrial detention is regulatory in nature,
United States v. Salerno, 481 U.S. 739, 747–48 (1987), and is assessed not
to preemptively punish a defendant, but only to reasonably assure the
safety of the community and the appearance of the defendant at court
proceedings. 18 U.S.C. § 3142(g). See also United States v. Kostadinov,
721 F.2d 411, 413 (2d Cir. 1983) (“[W]e find no merit in the appellant’s
contention that consideration of the weight of the evidence [in bail
determinations] contradicts the presumption of innocence in criminal
cases.”).
Section 3142(j) of the Bail Reform Act does not alter this
conclusion. Section 3142(j) states: “Nothing in this section shall be
construed as modifying or limiting the presumption of innocence.”
31
Contrary to Zhang’s argument, this does not mean that the
presumption of innocence limits a district court’s ability to engage in
factfinding as to pretrial detention. Instead, it must be read only to
emphasize that the outcome of pretrial detention hearings can have
no bearing on the presumptions owed to a defendant in the ultimate
determination of guilt at trial. 1 See Salerno, 481 U.S. at 755 (rejecting
the argument that the Bail Reform Act unconstitutionally
undermined the presumption of innocence).
Our conclusion is unchanged by courts that have found
otherwise. Most notably, the Ninth Circuit has suggested that “the
weight of the evidence is the least important of the various [§ 3142(g)]
factors,” lest a court make a “pretrial determination that the person is
guilty.” United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985).
1 In fact, courts often undertake the difficult task of making pretrial factual
determinations, including preliminary assessments of the evidence against a
defendant, without undermining a defendant’s presumption of innocence at trial.
See, e.g., United States v. Geaney, 417 F.2d 1116, 1118–21 (2d Cir. 1969) (holding that
trial court must make pretrial findings by a preponderance of the evidence on the
existence of a conspiracy in order to determine whether the co-conspirator
exception to the hearsay rule applies).
32
We agree, of course, that in deciding whether to release or detain a
defendant before trial, it is not the district court’s role to definitively
conclude whether the defendant is guilty. But as we have explained,
a preliminary assessment of the strength or the weakness of the
evidence can be a key consideration in whether the defendant is
dangerous or poses a flight risk, and such a finding does not in fact
impinge upon the presumption of innocence. Moreover, § 3142(g)
itself does not suggest any hierarchy among the various factors to be
considered by a court in a detention hearing. 2 See Kostadinov, 721 F.2d
at 413.
2 Our conclusion is unaltered by the district court opinions in this Circuit
that cite Motamedi, 767 F.2d at 474, or each other, for the proposition that the weight
of the evidence is the least important factor. See, e.g., United States v. Boustani, 356
F. Supp. 3d 246, 253 (E.D.N.Y. 2019); United States v. Paulino, 335 F. Supp. 3d 600,
613 (S.D.N.Y. 2018); United States v. Jones, 566 F. Supp. 2d 288, 292 (S.D.N.Y. 2008);
United States v. Watkins, 21-cr-50, 2022 WL 1497961, at *2 (W.D.N.Y. May 12, 2022);
United States v. Fox, 22-cr-53, 2022 WL 1420780, at *5 (W.D.N.Y. May 5, 2022);
United States v. Budd, 20-cr-06101, 2020 WL 5951335, at *3 (W.D.N.Y. Oct. 8, 2020);
United States v. Williams, 20-cr-293-2, 2020 WL 4719982, at *3 (E.D.N.Y. Aug. 13,
2020); United States v. Angwang, 20-mj-0837, 2020 WL 5947187, at *3 (E.D.N.Y. Oct.
7, 2020). By and large, these cases still consider the weight of the evidence in the
context of the case before them, and do not, in substance, indicate a practice of
finding the weight of the evidence to be universally less important than other
33
III. Conclusion
In summary: We hold that the district court did not abuse its
discretion in declining to reopen Zhang’s detention hearing.
(1) The government’s official decision not to pursue the death
penalty—made after the district court ordered Zhang
detained—did not constitute material information that
warranted reopening the detention hearing under 18 U.S.C.
§ 3142(f) because the district court had already assumed in
its initial detention determination that capital punishment
would not be sought.
(2) The district court was free to determine the appropriate
weight for each of the U.S.C. § 3142(g) factors, including the
strength of the evidence that the defendant committed the
factors. See, e.g., Boustani, 356 F. Supp. 3d at 253 (clarifying that despite caution to
afford undue weight to evidence against defendant, “significant evidence,
including extensive documentation, of a defendant’s role in a crime may weigh
against release”). To the extent those cases could be read to suggest that the weight
of the evidence is a generally less important factor in a detention decision, they are
unpersuasive for the reasons explained in this opinion.
34
charged offense, based on the circumstances of the case. Its
consideration of the strength of the evidence did not
contravene the presumption of innocence to which the
defendant was entitled at trial.
We therefore AFFIRM the district court’s challenged August 3,
2022, order, and we DENY Zhang’s motion for bail.
35